On
January 20, 2012, the US Department of Health and Human Services (HHS)
finalized its August 2011 mandate requiring virtually all employers to provide
insurance coverage for sterilization and contraceptives, including long-lasting
injections and implants, and so-called morning after pills. Depending on the
circumstances, these drugs and devices can cause abortions. The mandate went a
step further by effectively reversing previous exemptions to such mandates
based on conscience or religious grounds.

Universal
opposition

Strong
opposition to the mandate was immediate. Religious leaders and Americans of all
stripes correctly saw the mandate as a violation of the consciences of
individuals and of the free exercise of religion guaranteed by the US
Constitution. The Catholic Church, whose various entities have hundreds of
thousands of employees, was at the forefront of the opposition to this
unprecedented intrusion of the federal government into such matters.

While
President Obama must have anticipated opposition from the US bishops and faithful
Catholics, he may have been surprised to find that even the “progressive”
Catholics who helped to elect him in 2008 were against the mandate. Faced with
increasing opposition from conservatives and liberals, from people of faith and
non-believers, and even from the secular media, the President sought to placate
the opposition. He also sought to regain the support of “progressive”
Catholics.

A
meaningless accommodation

With
the help of a trade association called the Catholic Health Association of the
United States of America (CHA-USA), the Obama administration reached what it
believed was a workable solution. On February 10, 2012, the President approved
and confirmed the mandate, while giving religious institutions an extra year to
comply with its demands. At the same time he promised that he would allow an
accommodation before the date for compliance by religious institutions. This
“accommodation” was simple: insurance companies, and not the religious
employers, would cover these immoral practices free of charge. It was claimed
that the cost of the contraceptives and sterilizations would be offset by
savings associated with unwanted pregnancies that would now be avoided.

However,
as common sense and cost analysis conducted by insurers concluded, this
projection is absurd. There would likely be additional costs and certainly no
savings. With or without increased costs, all employers will pay premiums for
the entire insurance package and, therefore, be forced to provide drugs and
procedures in violation of their conscientiously held beliefs.

A
mixed reaction to the accommodation

The
United States Conference of Catholic Bishops (USCCB) and faithful Catholics,
together with thousands of other religious leaders and their congregations,
restated their opposition to the mandate and to the promised “accommodation.”
But the President dismissed their concerns, knowing that his anti-life,
anti-marriage, and anti-family policies had already permanently alienated these
groups. That they should now be further disaffected by this assault on
conscience and religious liberty is of little consequence to him. He instead
elicited support from those “progressive” Catholics he knew would accept and
promote the illusion that his “accommodation” corrects the abuses in the
mandate.

He
was right in thinking that his sleight of hand would give them an excuse to
turn a blind eye to the truth of the matter. The CHA-USA and the Leadership
Conference of Women Religious (LCWR) proclaimed their support for the
“accommodation.” The latter group expressed its appreciation to the President
for restructuring the mandate “in a way that respects the conscience rights of
religious institutions.” The University of Notre Dame and the Association of
Jesuit Colleges and Universities also voiced their support for the
“accommodation.” President Obama had succeeded in dividing Catholic opposition
and in muting the voice of the bishops through the pronouncements of these
dissident groups.

A
deeper divide within the Catholic Church

The
contradictory positions concerning the “accommodation” to the HHS mandate
within the Church have exposed a deeper divide between the bishops and
dissenting groups. Several news outlets cited a recent study claiming that 48
percent of US Catholic hospitals perform direct sterilizations. Others reported
that some Catholic colleges provide coverage for contraceptives, even when not
forced to do so by state law.

These
citations are intended to suggest that the strong and virtually unprecedented
opposition of the US bishops to the HHS mandate and “accommodation” is
hypocritical, or at least hopelessly out of touch with what is really happening
in the institutions whose right to the free exercise of religion the bishops
seek to protect. What they actually reveal, however, is the duplicity of these
institutions that give lip-service to Catholic teaching, while at the same time
ignoring it.

The
hypocrisy lies not with the bishops, but with institutions that promote
themselves as Catholic to gain the support and patronage of those who respect
the Catholic tradition, all the while defying the divinely given authority of
the Church and the moral truths that are at the heart of that Tradition.

A
question of authority

More
astute commentators realize that the duplicitous behavior of these institutions
points to a further problem; that is, the lack of serious supervision and
discipline on the part of the bishops. In fact, it must be acknowledged that
while the bishops retain their authority de jure, it has been de
facto greatly diminished, if not lost. Catholic colleges, universities,
hospitals, and professional organizations did not abandon the moral demands of
the Gospel overnight. Nor did the bishops lose their authority overnight, as
some commentators have suggested, referencing the sexual abuse crisis. No, they
lost it because they failed to exercise it in too many situations over all too
many years.

Engaging in open dialogue

The
majority of bishops have relied solely on cordial dialogue to persuade
dissident individuals and institutions to uphold the truth and to reflect it in
their behavior and pronouncements. As the current controversy and an
examination of the growth of dissent within the Church over the past 50 years
shows, this approach is not working.

And
now a monster has been created in the form of a self-appointed shadow magisterium
that regularly counters the true teaching enunciated by the bishops. In the
current controversy, Catholic politicians continue to present and promote their
personal erroneous theological opinions as valid Catholic teaching; the
CHA-USA, the LCWR, and influential nominally-Catholic educational institutions
have aligned themselves with governmental policies that the bishops have
rightly denounced.

The
issue here is not simply that such individuals and institutions have flouted
directives given them by the bishops, but that they have violated the moral
truth expressed in those directives. The bishops do not present moral teachings
in their own name, but in the name of our Lord Jesus. The practical rejection
of episcopal authority by these institutions over the HHS “accommodation” is
ultimately a denial of the moral truth and an abandonment of their mission to
proclaim this truth for the good of mankind. Their dissent also undermines the
religious liberty and conscience protections guaranteed to them by the First
Amendment.

The
importance of law

As
Cardinal Raymond L. Burke has demonstrated, the Code of Canon Law does not
merely permit the diocesan bishop to apply certain canonical measures to ensure
the Catholic identity of the Church’s institutions; it obligates him to do so.
Only a few bishops, who suffered the scorn of dissident groups and even of some
of their fellow bishops, have employed canonical measures (dialogue followed by
disciplinary action) to correct false representations of Catholic belief and
practice made by self-identified Catholics.

However,
the current controversy may have convinced an increasing number of bishops of
the need for greater supervision and stronger disciplinary action. Some seem
ready to go beyond dialogue. There are signs that many more bishops intend to
follow the prescriptions of canon law in order to compel Catholic institutions
to adhere to the teachings of the Church which they claim to follow.

New
unity and new hope

The
current controversy over the HHS mandate has stirred Americans to defend
religious liberty. The Catholic bishops are united in their opposition to the
mandate, and they enjoy the support of the majority of Catholics. Other
religious bodies have also expressed their firm resolve to fight the mandate in
the courts and through the legislature. Seven US states and several Catholic
organizations have already filed suit against HHS and other agencies of the
Obama administration.

People of faith and those of no faith will not
simply shut up and pay up in the face of this blatant attack on the fundamental
human and constitutional right to the free exercise of conscience and religion.

About the Author

Msgr. Kevin T. McMahon, STD

Msgr. Kevin T. McMahon, STD is professor of moral theology at the Pontifical College Josephinum in Columbus, Ohio.

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